PATENT DECISIONS

Decision of Minister of Health Rejecting ANDS Upheld

Apotex sought judicial review of a decision of the Minister of
Health that had the effect of rejecting its Abbreviated New Drug
Submission (ANDS) for progesterone capsules. Health Canada had
issued a Notice of Non-compliance (NON) with respect to the ANDS.
It then issued a NON-W. Apotex filed for reconsideration of the
NON-W and asked that the matter be determined by an external panel.
An internal panel was convened. The chair of the panel circulated
notes for a decision to the panel members. The panel then held a
meeting with representatives of Health Canada and Apotex. The panel
issued a report rejecting the reconsideration and recommending that
the NON-W be upheld.

Apotex made subsequent attempts to obtain a reconsideration. The
Court held it was unreasonable in fact and an error of law for
Apotex to think that a further reconsideration could be granted. It
was unreasonable to confuse a polite negative response with a
positive expectation of further reconsideration. However, the Court
also held that Apotex was on the horns of a dilemma, as if a
judicial review was filed, any reconsideration or hope thereof
would end. Thus, the Court granted Apotex an extension of time to
start the Judicial Review.

Apotex sought judicial review on grounds of procedural fairness.
The Court held that the exercise engaged in by the panel was
detailed, technical and based on expert knowledge. There is no hard
and fast rule that an external panel is needed for a
reconsideration. Furthermore, the Court held that it is one thing
to make notes and sketch potential conclusions, as here, and
another to arrive at a hearing with a draft decision ready to be
signed.

In addition, the Court held that the panel was entitled to stay
up to date on what was known in the art. Apotex could have done its
own research with its consultants. Furthermore, Apotex did not
request an extension of time to deal with what they now say is new
evidence. Procedural unfairness must be raised with the first
instance forum. Thus, the Court held that there was no breach of
natural justice or procedural unfairness. Furthermore, the decision
was reasonable. Thus, the judicial review was dismissed.

Costs Award of $6.5 million for Plaintiffs' Costs Following
Successful Infringement Action Upheld on Appeal

The Court of Appeal dismissed Nova's appeal from the Federal
Court's decision awarding the Respondents $6.5 million for
costs consequent to their success in an action for patent
infringement (see 2016 FC 91,
our summary here). The lump sum award was comprised of $2.9
million for legal fees and $3.6 million for disbursements.

In the appeal, Nova asserted two errors. First, Nova submitted
that costs awards should be guided by the standards established in
Tariff B, and that any departures from the Tariff should be limited
to exceptional cases. Second, Nova took issue with the sufficiency
of evidence before the judge in respect of both the fees and
disbursements claimed. After a review of the principles of lump sum
awards and evidentiary considerations, the Court of Appeal
concluded that the judge did not err in awarding costs in a lump
sum, or in fixing them as a percentage of Dow's actual
expenses; nor did the judge err in allowing the disbursement for
testing without a supporting affidavit.

The Court of Appeal noted that, in the ordinary course,
disbursements of this magnitude should be supported by affidavit
evidence. However, given the unique circumstance of this case, the
Court of Appeal found that the judge had a sufficient basis on
which to conclude that the disbursement claimed by Dow for its
testing was reasonable. For example, the circumstances of this case
were such that the judge could gauge the reasonableness of the
disbursement in a number of ways, including through a contested
motion which considered the question of testing, how and when it
was to be done, the measures necessary to protect intellectual
property interests, the operational aspects including supervision,
costs and disclosure of results.

Dismissed Motion for Interlocutory Injunction

The Federal Court has published its Order and Reasons in 2016 FC
606, dismissing TearLab's motion for an interlocutory
injunction to prevent the sale of the i-Pen by I-MED Pharma,
pending the determination at trial of TearLab's patent
infringement claim.

In our Newsletter from the week of January 16, 2017, we
summarized the Federal Court of Appeal's decision dismissing
TearLab's appeal of this decision (see 2017 FCA 8,
our summary here).

TRADEMARKS DECISIONS

The Court dismissed Schwan's appeal of the Trademarks
Opposition Board's decision, which refused its application for
the trademark EDWARDS & Design. The Registrar had allowed
Sobey's opposition on the issues of confusion and
distinctiveness and had refused the Application to register the
Mark.

On appeal, the Court considered the newly filed evidence
consisting of eight affidavits. The Court concluded that the new
evidence did not materially affect the Registrar's decision.
With respect to the reasonableness of the decision, the Court found
that the Registrar's decision was reasonable, and in
particular, her focus on the resemblance between the marks and
conclusions about distinctiveness were reasonable. The Court noted
that it was open to the Registrar to afford relatively more weight
to the degree of resemblance, as the caselaw makes it clear that
the factors in the confusion analysis need not be given equal
weight.

Many entrepreneurs and small business owners exhibit an extraordinarily high level of motivation. They are individuals with the wide-ranging skill set that is necessary to achieve success in their chosen field.

The Federal Court of Appeal has recently confirmed the decision of the trial judge and dismissed an appeal from a decision which found that use of the business name "Time Development Group" infringed...

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